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FOI: An FOI officer responds to my 10 points on improving the Freedom of Information Act

Yesterday, I posted my submission to the House of Commons committee which will be reviewing the Freedom of Information Act. I believe we have a lot to fear from this review, with the cloak of cost being used by public authorities which don’t like paying more than lip service to transparency as a reason to restrict access to information.

My post prompted an email from Lee Gardiner, an FOI practitioner, who I’ve debated with on this blog before. He responds to each point I made, and I’ve added my original points into his reply so it makes sense in one post:

Some comments on your blog and submission from a FOI practitioner’s personal perspective.

Firstly I think it overly generalises the view of public authorities as I, along with most of my colleagues, fully support FOI and are as opposed to the suggested changes as the press and public. In fact it is worth noting that the vast majority of support for change has come from central government.

Turning now to your specific points:

The growing trend of complaining about the cost of FOI . A growing number of politicians, particularly at local council level, seem determined to raise the rising cost of FOI as a reason to curtail it. It is common for councils to push press requests towards FOI officers, thus increasing that cost. We believe that better archiving of information within public bodies, plus a can do attitude from senior officers in some cases, would bring the cost down

1 – Cost is a significant issue for PAs at present and I have yet to see any evidence to say better archiving will reduce costs. Efficient and effective archiving systems in themselves can have significant costs and this immediately assumes all FOIs are for information that would be archived which is often not the case.

It is not cost effective for PAs to ‘re-archive’ old information to provide better access as 99% of the old stuff will never be requested. The issue of cost and archiving will only become greater in the next few years as cuts begin to bite.

Political interference in FOI.vWe have been alarmed by a number of cases where councillors or other politicians have become involved in FOI decisions. It is well documented that the leader of Kirklees Council vets many FOI requests before they are published, and has in some cases tweaked the responses. This goes against the very spirit of FOI. A recent Welsh FOI decision was made by a first minister. The information sought – about problems at a Welsh hospital – would, we believe, have had the potential to cause a political issue. There need to be firmer rules detaching FOI from the political process.

2 – FOI is, in theory at least, already detached from the political process but by definition PAs are political bodies and so dedicated FOI officers or their equivalents are part of that machine. As such unfortunately politics plays a part in FOI and to deny this reality or expect politics to play no part is naïve at best. This reality is here to stay regardless of how FOI operates in the future.

Press Office interference in FOI requests. It is not uncommon for our reporters to submit an FOI request and then be asked about it by the press officer. Press officers should have the same access to all FOI requests, and not treat press ones differently.

3 – Can’t disagree with this although I would say in the PA I work for the Comms team see all FOI requests and only get interested in the press ones if the issue is contentious. In an ideal world they wouldn’t get involved but again the political reality is they want their say and it is again naïve to expect an organisation not to put some spin on its response. There is also a danger that the press will take information out of context, a case in point being the Daily Mail and their recent story on thefts from the police.

The use of cost limits. The use of cost limits causes us great concern. It is rare that an FOI officer will tell a applicant what information they could have within a cost limit. Likewise, a breakdown of how the cost limit breach was worked out should be mandatory. We are alarmed by suggestions that additional actions could be factored into the costing of an FOI request -this would reward those authorities which make information hard to find.

4 – The issues you raise here should be a matter of best practice rather than law. The PA should apply some common sense if I’m honest as the first thing the ICO will do is ask you to justify how you got to X £/hrs so why not include it in your refusal, I know I do.

The use of disclosure logs

Disclosure logs have always been seen as ideal by the ICO, yet are very rare. If councils and public bodies wish to reduce requests, then operating effective disclosure logs would be a very effective start.

5 – Disclosure logs are a lot of work for very little reward and are useful only for a refusal under S21 as any authority worth its salt will retain a copy of any FOIs it sends and these repeat requests can be easily responded to. I know of one PA which has a disclosure log which takes approx half a day a month to maintain but has had the grand total of 0 hits in the 4 years it has been there! Is that a useful or cost effective tool?

Active misunderstanding of questions

We have seen FOI requests where active misunderstanding of questions is clearly taking place. One example involves a reporter asking about bed blocking and being told the hospital trust in question did not suffer bed blocking. When asked under FOI about ‘delayed discharges’ a full breakdown followed. It is unfair to expect members of the public to be experts in terminology when submitting FOI requests.

6 – While I accept it is unfair to expect the public not to understand terminology the PA is perfectly entitled to respond to the question asked which may not elicit the response required as it isn’t the PA’s job to second guess a requestor and know what they want if they ask for something else. That said the PA should already be fulfilling its duty to advise and assist and if necessary clarify the request to avoid this. It should also be said that a journalist should probably be more ‘au fait’ with the correct terminology than the public at large.

The term vexatious

Allowing the definition of vexatious to be open to interpretation empowers authorities who wish to keep information a secret.

7 – I agree a more specific definition of vexatious/vexatiousness for FOI purposes would be useful but I disagree that in its current form it is far too vague and provides a ‘catch-all’. Even in its current form it is difficult to apply S14 effectively without the appropriate evidence to back up its use. PAs as well as requestors need to remain mindful that it is the request, not the requester that is vexatious.

Rewarding authorities which make information hard to find

We frequently hear of cases where reporters submit FOI requests to six similar bodies (e.g. a PCT) and get information back from five but be told by the sixth it is too hard to find. As it stands, FOI legislation rewards the obstructive. We would like to see a test applied which tells the sixth authority that if five others can find it, then so should they.

8 – This point doesn’t appreciate the structural and operational realities of the public sector and while, using one of your examples, 5 authorities may have systems that allow information X to be easily sourced why should authority 6 be punished for not having a similar system that allows easy access ? What if authority 6 has no operational need to easily access that information? Also what if the first 5 authorities are District councils and no 6 is a Parish Council for example? Given the gulf in resources is it appropriate to expect the Parish Council to operate to the same processes or levels as the District Councils? The simple answer is no as this is unrealistic. The fact is each PA is a different animal with its own quirks and foibles which will influence its ability to respond and requestors need to appreciate this. FOI is a 2 way process and for it to work properly requestors need to have an appreciation of the PAs situation/position when making requests as much as PAs do. Unfortunately experience tells me this often isn’t the case!

An empowered ICO with the resources to make things happen

The ICO works very hard to resolve problems, but is not resourced to meet demand. It needs to have resource to respond to complaints quickly and be able to resolve them quickly. The current situation allow authorities keen not to release information to kick the problem into the long grass.

9 – I’m in total agreement on this one but regardless of resources the ICO needs to take a long hard look at itself and ask why it is so criticised and what could it do better? Advice given is often conflicting and on occasions they are hardly the model; of best practice and consistency they should be given their position as regulator.

A statutory requirement on public bodies to promote FOI and openness throughout their authorities

While FOI is enshrined in law, it is still seen as ‘not part of the day job’ by many, and in some councils, FOI officers tells us of a constant battle with senior management. While resources remain under pressure in the public sector, there can be little hope of faith in the public sector if it is not seen to be actively transparent. Making it a legal duty of senior officials and politicians to support the principles of FOI, and be held accountable for blockages in the process, is the only way to ensure the right to know is not at the whim of the requesting body.

10 – Again I agree with this and it would make the FOI Officer’s lot a much easier on if this was the case… as for answers if I think of one I will let you know.

Overall FOI works OK as it is but I’m not naïve enough to deny it doesn’t need a few tweaks. If we are going to have a debate about FOI it needs to be balanced and people on all sides need to swallow their pride and see that actually there are two sides to the process and accept that there is no ‘one size fits all’ process and the Act needs some flexibility to allow it to function properly.

* * *

Without sounding too coalition, I agree with a lot of what Lee says. The evidence gathering session provides an opportunity to raise concerns about areas where something isn’t working, as well as areas where it does. Hopefully, the fact that the Newspaper Society has provided the evidence committee with a link to my blog will demonstrate that FOI, generally, works quite well. My concern remains that FOI works quite well at those authorities where senior managers or politicians don’t mind/want it working well. There is still too much room to block the release of information.

Lee makes some good points about the cost of re-archiving old information to make it easier to find, but there’s nothing to stop public sector organisations working harder to make stuff currently being created easier to find in the future. Likewise, it should surely be good practice for similar organisations to archive and hold information in the same way – they are, after all, doing the same job in different areas.

One thing I always advocate whenever I train on FOI to journalists, or present to FOI officers about our experiences is that the two sides should talk more – that can often make a huge difference.

8 comments

I disagree there Paul – Lee is engaging in a dialogue which helps people to see both sides and hopefully come up with an answer for both sides, too. The problem, I would argue, is more to do with lack of managerial and political buy in in many authorities, not with the FOI officers.

I’ve worked on the inside at two dodgy authorities who could not be MORE actively engaged with their twisted and cynical interpretation of “what needs revealing” and “what needs concealing”:

Wirral (9 years’ systematic learning disabled abuse, denials, minimisation, cover up, calculated tactic of using phone calls to avoid leaving a checkable and auditable trail) and Cheshire West (tried to charge for FoI; dispensed with a whistleblower, then opted out of its info and data obligations using an expensive, unscrutinised gagging clause which removed his statutory querying rights).

Ian’s colleagues at these authorities would be quite happy with his comments, but you?

Then again, as a salaried journalist with much of the ugly and perverse status quo to lose, and unlike most other commentators, you DID think the Press Complaints Commission was fit for purpose in one of your earlier blog posts……

I agree that there are some authorities which make life hard, but I always start from the position that you shouldn’t tar everyone with the same brush. I’ve been asked to speak at various get togethers of FOI officers in the last few years, and they are always frank discussions but I believe that the vast majority of FOI officers do want to just do their job.

I’m not arguing for the status quo, I’ve suggested improvements to the Act and regularly highlighted shortcomings in the way the Act is used on this blog.

As for the PCC, I can only comment on regional newspapers, and my experience within regional newspapers is that the PCC has worked.

Nothing like a constructive contribution is there Paul… You can’t even get my name right!!

I’m not apologising for the failings of other authorities and I am not naive enough to believe all is perfect, I was merely commenting on David’s original post from the other side of the fence but if all you see is conspiracies and smoking then guns then that’s your choice.

Sarcasm and spurious comment doesnt really add to the debate does it!

The simple truth is if a lot of requestors engaged with authorities and tried to cooperate rather than being immovable on their position (and yes I agree that position cuts both ways) then a lot more would be achieved for a lot less hassle.

Four directors have now been suspended at Wirral Council, including Ian Coleman, formerly “heading up” Freedom of Information and Information Governance. My longest unresolved FoI request is at 14 months and counting. Others have been waiting longer. One director, not suspended, has said the “blame” for the situation lies with “a small number of requesters making a large number of requests.”

Nothing like a pathetic lack of awareness to sound the death knell on a failing organisation is there? Wirral is widely believed to be heading towards special measures. I would not expect those struggling on the ground as regards FoI to be blowing the whistle anytime soon either. Not when they’ve divorced themselves morally, been bending to the will and doing the twisted bidding of their senior colleagues for soooooooooooo long. Thou shalt never be a bystander – not where 15 long years of learning disabled abuse is concerned.

“The problem, I would argue, is more to do with lack of managerial and political buy in in many authorities, not with the FOI officers.”

Spot on David.

“The simple truth is if a lot of requestors engaged with authorities and tried to cooperate rather than being immovable on their position (and yes I agree that position cuts both ways) then a lot more would be achieved for a lot less hassle.”

+1 again. Lee, I think I put this shorter and much less professionally in response to one of David’s previous blogs by begging requesters who were ‘struggling’ with how to get information to just pick up the damn phone (grin). I find it so sad that something as positive as FOI turns confrontational when there’s no reason for it to be. Really there isn’t.

I’ve also made the below points on other blogs (and probably previously on here) but I’m going to make them again:

1. Requesters need to recognise that public authorities have no *legal* obligation to collate/record everything/anything that could conceivably (and legitimately) requested under FOI. If a requester is asking for information that the PA is not bound by law to publish/report/have audited, then the PA will have some degree of freedom as to how they manage that information. Which means that some will readily be able to supply it – and some will refuse on cost grounds because they don’t collate (whatever it is) centrally. Before anyone gets all holier than thou about us publishing “everything”, perhaps they would like to consider the following:

a – costs of doing this – costs which would detract from money spent on patient or service user/taxpayer care. Different budgets? Yes, but even so – the admin budgets in our organisation were actually underspent by a small amount last year. That money was reallocated to provision of services. So it does matter.

b – I can’t speak for other types of PA, but we are obliged by Dept Health to report on over 600 ‘targets’ in the NHS this year. As the media and politicians are already howling about costs of bureaucracy (largely created by their demands for information), we do not have the resources to collect/publish “everything” – so if there’s no legal obligation to publish/record, then the information may well not be available, or available within the cost limits. Don’t get me wrong; I’m a taxpayer too and PAs should absolutely be transparent and accountable about their costs. But there has to be a compromise between value and cost of information and every requester will probably have a different view on where those lines are drawn. If you’re the wrong side of it and get your request refused as information not available or you’d have to pay – well, sorry. We do the best we can.

c – not just resource limitations: system limitations. Sometimes databases (accounts, other reporting, whatever) simply do not have the functionality to search for or sort information in whatever peculiar way a requester has asked for. In that case, the PA should absolutely get back to the requester and discuss how the request can be restructured to make response possible, but still useful for the purpose. I refer the honourable reader to Lee’s comment quoted above: BOTH parties need to be ‘reasonable’.

And finally (also ‘again’). Requests about zombies, red pens only, etc. Not big and not clever. As a former FOI officer (now working in the wider information governance arena) I believe in FOI, which is why requests with no serious purpose or value annoy me. Sure your “hilarious” request will make you famous. It’ll be quoted by all the politicians who want to get rid of or emasculate FOI. Please don’t give them any more ammunition. Thank you.

Submissions to the House of Commons Committee: the whole thing is 100s of pages, I’ve only ‘cherry picked’ so far, skim reading some, reading whole responses in other cases – including David’s, since I vaguely keep up with his FOI blog!

In the light of reading your response David, I’d like to expand on my point 1 above, in response to point 8 of your submission, which makes the assumption “if 5 can supply, then the 6th should be able to as well” – sorry, but that really *ain’t* so.

Here’s a real life example from my FOI days: just 18 months or so ago we had a request for very detailed information relating to building maintenance visits for a very specific purpose. This had been sent to a number of similar NHS organisations in the region, who were of varying sizes although the organisations’ function were the same. We supplied what was readily obtainable, but refused much of the detailed information on cost grounds and got an instant (literally within 10 seconds – had the requester REALLY read our reasoning?) and, I’m sorry to say, actually rather rude, request for an internal review on exactly the same basis as you gave in your point 8 – “others can do it, so can you”.

So, I called some of my peers in the other organisations who had received the request to find out whether they had answered (Dear requesters: if you don’t want FOI officers ever to compare notes, then it’s up to you to not show us the entire distribution list. Please also note that my motive here was to try to help the requester by testing whether we *had* in fact been reasonable – not to question the purpose of the request or their identity).

Anyway, some of the organisations I spoke to had responded fully, some had also refused the request on cost grounds.

– All of our organisations had multiple sites. Ours was the largest out of all that I spoke to (covering the widest geographical area and with the most sites).
– Some of our organisations had a central function for arranging buildings maintenance and logging all calls and visits, some left it up to individual site management with logs on site (which would have needed scanning and collating – this is what we do in most cases and time taken to get hold of all these for all the dates requested would have been well over 18 hours before tackling any other parts of the request!). It should be noted that there is no Dept Health guidance on process – as long as the maintenance gets done at intervals (which are specified), it’s up to individual organisations how that’s implemented.
– Some of our contracts for the particular service of interest were specific to that service, making it easy to identify costs. Some of us had contracts where the service was included as part of a maintenance ‘package’, making it impossible to separate actual costs of regular site visits related to the specific maintenance need of interest to the requester. Additional call outs for actual faults were sometimes identifiable as extra costs were incurred under contracts – but not always, as again, the package included some facility for rectifying minor faults.
– In our organisation, I went and visited (yes, literally) the person who was responsible for the accounts payable for the contracts in question. Together, we examined a selection of copies of site visit logs, completed by the contractors’ staff on site visits. It quickly became apparent that it would have been very difficult, if not impossible, to determine whether a fault was actually present at the time of the visit, or whether it was a ‘preventive’ visit (i.e. to reduce or remove the risk of faults occurring). To complicate matters further, in the time period the request covered, the organisation had merged from 8 organisations to 2. We therefore had a number of contracts relating to the service that were still in operation, and they ALL worked differently. Trying to collate all this into something that would have been of any use whatsoever to the requester was, frankly, impossible.

Could we have done better, by specifying more detailed cost separation in the contract tender documentation; by requiring contractors’ staff to complete more detail on their visit reports/log sheets, etc. Of course we could. We could have easily and quickly provided costs of each contract and what the contract covered, and this information is clearly in the public interest. But in our organisations, the resource to obtain the (excruciating!) level of detail that ONE person wanted would have been prohibitively expensive: we simply did not hold the information that way, and there was (and remains) no legal obligation for us to do so.

If a knowledgeable requester like David made a wrong assumption about what’s possible under FOI (sorry David!) then evidently PAs haven’t been communicating effectively and that really has to change.

My explanation isn’t intended to be a ‘defensive’ position. If information cannot be provided because it’s not held or cannot be obtained within the cost limit, then organisations are responsible for explaining their reasoning very clearly, and, if possible (depends on what’s being asked for) should (in my opinion) offer reasonable suggestions as to how the request can be amended to bring it within the cost limits.